Justice Sotomayor, Justice Scalia and Our Six Catholic Justices

Now that Justice Sotomayor has officially donned her robe, I'd like to muse a bit about the extraordinary fact that we now have six Catholic justices. This is a great testament to our nation's capacity to grow more tolerant over time. For most of American history, anti-Catholic prejudice was severe in the United States, and the idea that we would one day have six Catholic justices was about as likely as the prospect that we would one day have an African-American president.

But does the religion of the justices in any way matter to the business of the Supreme Court? A lot of attention was paid during the confirmation hearings to Justice Sotomayor's Hispanic heritage and the impact it might have on her jurisprudence, but her faith was largely backgrounded, as if being Latina matters but being Catholic doesn't.

Several years ago, I posted a piece ("Our Faith-Based Justices") about the Supreme Court's decision in Gonzales v. Carhart, in which the Court, in a five-to-four decision, held constitutional a federal law prohibiting so-called "partial birth abortions." Several years earlier, in Stenberg v. Carhart, the Court, also in a five-to-four decision, had held unconstitutional a virtually identical state law.

What interested me most about Gonzales was that, in my judgment, the Court had no reasonable basis for not following its own prior decision. Not much had happened in the law in the years between the two decisions. The only really significant change was that Justice Alito, who voted with the majority in Gonzales, had replaced Justice O'Connor, who had voted with the majority in Stenberg.

Ordinarily, in the face of such a clear and recent precedent, we would expect the justices to follow the prior decision. What intrigued me about Gonzales was that the five justices in the majority couldn't bring themselves to apply the early decision. Instead, they purported to distinguish Stenberg, on grounds that just were not persuasive.

In seeking an explanation for this rather odd behavior, I pointed out the admittedly "awkward" fact that "all five justices in the majority in Gonzales were Catholic," whereas the four justices who were "not Catholic all followed settled precedent." I therefore raised what seemed to me the obvious and interesting question whether, in deciding Gonzales, the five Justices in the majority had "failed to respect the critical line" between their personal religious beliefs and their responsibilities as jurists.

I knew, of course, that this was a highly inflammatory question, but I felt it needed to be asked, because I found it difficult to conceive of any other plausible explanation for why the five justices in the majority declined either to follow or to overrule the governing precedent.

Not surprisingly, this piece generated a lot of attention - and controversy. Quite a few people accused me of being an anti-Catholic bigot. I was confident, though, that I would have raised precisely the same question in a case in which all five African-American justices, or all five Jewish justices, or all five women justices voted together in a similarly controversial decision involving African-American, Jewish, or women's issues, especially if all the other justices voted the other way.

What did surprise me, though, was the reported response of Justice Antonin Scalia. Joan Biskupic, a journalist who has covered the Supreme Court for U.S.A. Today and the Washington Post, and has written a fine biography of Justice Sandra Day O'Connor, has now written a soon-to-be-published biography of Justice Scalia. During an interview with Justice Scalia for her book, Biskupic asked him about my piece on Gonzales. According to Biskupic, he became quite agitated and said some pretty harsh things about me. (You'll have to read Biskupic's book to learn the details).

This surprised me, because Justice Scalia and I have known each other for many years. We served together as colleagues on the faculty of the University of Chicago Law School before President Reagan appointed him to the bench, and I have long considered him a friend, even though we often disagreed about legal issues. According to Biskupic, he was still angry more than a year after my piece on Gonzales first appeared.

Of course, I can understand why Justice Scalia is upset. He considers himself a highly principled jurist who would never consciously allow an extraneous consideration to enter his thinking. I have no doubt that Justice Scalia is completely sincere in his belief that he neutrally "applies the law" and is completely uninfluenced by his personal beliefs and values.

I've thought a lot about this in the months since Biskupic informed me of Justice Scalia's response, especially in light of all the talk about Justice Sotomayor's Latina background during her confirmation hearings. In my view, it is inevitable that a justice's background, experiences and values will to some degree inform his or her jurisprudence, at least in some cases. This can sometimes enrich a justice's understanding, but it can also distort it in ways that are inappropriate.

Was my observation about Gonzales unfair? It was based on a single data point, and it is difficult (though not impossible) to draw sound conclusions from a single observation. So, here are some additional data that I find intriguing.

The ten justices appointed since the 1973 decision in Roe v. Wade have cast a total of forty-five votes in cases involving the constitutional right to abortion. Twenty-two of those votes were cast in support of abortion rights (49%); twenty-three were cast to contract abortion rights (51%). In those ten cases, the five Catholic justices cast only one vote in support of abortion rights (6%), and sixteen votes to contract abortion rights (94%). The five non-Catholic justices (two Jews and three Protestants) cast twenty-one votes in support of abortion rights (75%), and seven votes to constrict those rights (25%). That's a pretty considerable difference.

Perhaps the real explanation for this difference, however, is not religion, but judicial philosophy. That is, perhaps justices appointed by Republican presidents oppose abortion rights, whereas justices appointed by Democratic presidents support them. But it is not so simple. If we consider the eight justices appointed by Republican presidents since Roe, we find that they have cast 18 votes in support of abortion rights (44%), and 23 votes to contract abortion rights (56%). When we break these votes down by religion, we find that the Catholic justices appointed by Republican presidents since Roe have cast only one vote in support of abortion rights (6%), and sixteen votes to limit those rights (94%). The non-Catholic justices appointed by Republican presidents since Roe have cast 17 votes in support of abortion rights (71%), and 7 votes to constrict those rights (29%). Thus, even among justices appointed by Republican presidents since Roe, it appears that religion significantly explains their voting pattern on the issue of abortion.

But perhaps the real explanation is that the Catholic justices appointed by Republican presidents since Roe are generally more conservative than the non-Catholic justices appointed by Republican presidents since Roe, so that it is ideological difference rather than religion that explains their voting pattern in abortion cases. That, too, however, seems not quite to be the case. For example, if we consider the voting pattern of these justices in a somewhat related area of constitutional law - the interpretation of the Equal Protection Clause, we find that the Catholic justices appointed by Republican presidents since Roe have voted to invalidate challenged laws under the Equal Protection Clause 46% of the time, whereas the non-Catholic justices appointed by Republican presidents since Roe have voted to invalidate those laws under the Equal Protection Clause 42% of the time. Thus, at least in the Equal Protection context, religion does not appear to play a significant role.

Of course, none of this necessarily "proves" anything. The five Catholic justices appointed by Republican presidents since Roe often vote together on a range of issues having nothing to do with their religion. Moreover, it is certainly the case that not all Catholic justices oppose the constitutional right to abortion. Justice William Brennan, for whom I was a law clerk in the year Roe was decided, was a Catholic justice who strongly supported Roe v. Wade, and it seems likely that Justice Sotomayor will follow Brennan's example. But Gonzales does raise interesting questions about whether and to what extent judges are and should be influenced by their religion, their ethnic background, their race, their life experiences, and their personal values.